Munder Lal Sashu and Others vs Jiwan Ram Marwari

Varma, J.—This is an appeal by the judgment-debtors against an order of the Subordinate Judge, Godda, dated 7th February 1942, rejecting their petition of objection u/s 47, Civil Procedure Code. The execution was taken out by the decree-holder in pursuance of a decree obtained by him in the High Court, which decreed possession of the plaintiff over the entire 16 annas of kamat lands in village Simaria Ghat, Tauzi No. 610: That suit had arisen out of certain transactions between the two parties which led to a dispute with regard to the kamat lands of village Simaria Ghat Tauzi No. 610 and village Sonarchak Tauzi No. 611 which were ultimately sold to the decree-holder by a sale deed dated 27th June 1933. Amongst the reliefs sought in the plaint of the suit, it was prayed.

that a decree for possession be passed in favour of the plaintiff against the defendant first party with respect to property mentioned in Schedule 1 appended hereto on adjudication of plaintiff''s title to the same by virtue of his purchase.

There was also n prayer:

that the defendant first party be evicted from the property mentioned in Schedule 1 and the plaintiff be given khas possession thereof.

In Schedule 1 the property was described thus:

Entire sixteen annas of kamat lands 45 bighas 8 ch. 3 dhurs in mauza Simaria Ghat T. No. 610 covered by jamabandi No. 113 with all rights and interest therein, being plots Nos. 38, 39, 40, 58, 91, 93, 103, 110, 116, 168, 169, 177, 191,198, 200, 88, 166 and 117.

It is not necessary to give the details of the lands of the other village Sonarchak, because that is not the subject of dispute before us. But it appears that at the time of taking out execution, eight other plots namely, plots Nos. 109, 186, 82, 83, 34, 87, 82 and 101 were also included by the decree-holder. These plots are obviously not included in the description given in Schedule 1 which I have just quoted; and the question that has been agitated before us is whether the description given in the plaint showing fewer plot numbers will prevail, or whether in execution the decree-holder can proceed to take delivery of possession according to the description given by him in the execution proceedings, which description shows more plots of land than those described in the plaint as appertaining to village Simaria Ghat lauzi No. 610.

The Court below has pointed out that the decree-holder''s case was that the suit was for recovery of possession over the entire 16 annas kamat lands of village Simaria Ghat, which comprises 45 bighas 8 kathas 8 dhurs, and that he took out execution for that area, and it was urged in the Court below that the description of the lands by plot numbers was merely secondary to the claim of the decree-holder for the 16 annas kamat lands in respect of which the decree in execution was granted. The Court below has pointed out that the khatian relating to these kamat lands showed that 16 annas of the kamat lands in the village comprised of 45 bighas 8 kathas 8 dhurs. It appears that the sale deed on which the suit was based did not describe the kamat lands by indicating therein the plot numbers and the schedule to the plaint proceeded to describe as "16 annas pokhta zamindari property in village Simaria Ghat together with kamat....

Mr. B.C. De, appearing on behalf of the, judgment-debtors urges that the specific plot numbers stated in the plaint will govern the execution proceedings and override the general description given of the property in suit. He refers to the provisions of Order 7, Rule 3 and Order 20, Rule 9, Civil P.C. Order 7, Rule 3 provides that:

Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

Order 20, Rule 9 provides that:

Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement of survey, the decree shall specify such boundaries or numbers.

Both these rules emphasise the fact that there should be a description of the immovable property sufficient to identify the same, and if there are plot numbers the plot numbers should be given. The question still remains whether in the absence of some of the plot numbers in the present case, the description which has been given of the property is sufficient to identify it. Mr. De has relied upon two cases, Griffiths v. Pension (1863) 9 Jur. (N.S.) 385 and Dawes v. Miller (1908) 1 Ch. 185 . These two cases apparently seem to support Mr. De''s contention but the particulars of the description given did not cover the entire property and, therefore, it was held that the specific properties only would be affected. Dr. Mitter on behalf of the decree-holder has, on the other hand, relied upon West v. Lawday (1865) 11 H.L.C. 375 where Lord Westbury in the course of his pronouncement referring to the maxim of falsa demonstratio observed as follows:

It is altogether a mistake to suppose that the language of this will is capable of being brought within the range of that maxim. That maxim to which I refer is applicable to a case where some subject-matter is devised as a whole under a denomination which is applicable to the entire land, and then the words of description that include and denote the entire subject-matter are followed by words which are added on the principle of enumeration, but do not completely enumerate and exhaust all the particulars which are comprehended and included within the antecedent, universal, or generic denomination. Then the ordinary principle and rule of law, which is perfectly consistent with common sense and reason, is this: that the entirety which has been expressly and definitely given shall not be prejudiced by an. imperfect and inaccurate enumeration of the particulars of the specific gift.

Dr. Mitter has also referred to Travers v. Blundell (1876) 6 Ch. D. 436 .

In that case a testator gave all that part of Rigby''s estate purchased by him consisting of closes A, B, C, D, B and F, with the timber and coal mines, to trustees in trust for his son J.O. for life, with remainder to the use of J.O.''s children as he should by deed or will appoint, and in default of appointment to the use of J.O.''s right heirs. J.O., by his will, after reciting the devise in his father''s will (but without enumerating the closes), appointed all that part of the property devised by his father''s will and therein described as that part of Rigby''s estate purchased by his said father consisting of A, C, B and F, with the timber, but not including the mines to his two sons T and J; and he appointed the mines under the land which he had appointed to T and J to his four other children. The two omitted closes, D and E, lay between the other four. A special case having been filed to obtain the opinion of the Court whether the two closes D and E passed under the appointment to T and J, it was held (affirming the decision of the Master of the Rolls), that the corpus of the estate devised by the father was sufficiently designated in the son''s will, that the enumeration of the four closes instead of the six was a falsa demonstratio which might be rejected; and that the whole of the six closes passed under the appointment.

In the course of the argument reference was made to Watcham v. Attorney-General of the East Africa Protectorate (1919) A.C. 533 where in a land certificate issued by the Crown there was a variance between the stated acreage and the area as described by physical boundaries, it was held that evidence could be given of user inconsistent with the area intended being that included in the boundaries, so as to establish that that description was a falsa demonstratio. This decision is not very helpful because the land in this case was on a river bank where other considerations arise, as also in the case of lands on the sea-shore Mellor v. Walmesley (1905) 2 Ch. 164

On a reading of all these cases, the only conclusion that one can come to is that if there is a discrepancy between the two descriptions given of an immovable property, the leading description should be accepted. In the present case I have no hesitation in agreeing with the lower Court that the leading description was "l6 annas Kamat land in e village Simaria Ghat" which comprised 45 bighas 8 kathas 3 dhurs in Jamabandi No. 113 and that the description by plot numbers was not complete.

There was a preliminary objection taken by Dr. Mitter that no appeal lay inasmuch as the execution was at an end. The decree was passed on 14th January 1941, possession was taken on 22nd April 1941 and the present application was made on 10th May 1941. But the objection does not take into consideration the difference that was pointed out in Tribeni Prasad Singh and Others Vs. Ramasray Prasad Chaudhari and Others, that there is a distinction between there execution of a decree which directs the delivery of any property specifically decreed and the execution of a decree for a sale under a mortgage or a simple money decree. It was, again, held in Thatantavita v. Puthalathu Kandi Kombi Aliasan AIR 1919 Mad. 269 that an application by a judgment-debtor for the restoration of immovable property in excess of what has been decreed is governed by Article 181 and not by Article 165, Limitation Act.

The preliminary objection is, therefore, not maintainable. I would, therefore, dismiss the appeal; but I would not allow costs of this Court to the respondent, because it was on account of the mistake of the decree-holder that this litigation has continued so long.

Beevor J.

I agree.